(dissenting). I dissent and would affirm. Defendant got what it bargained for and should pay.
In its amended answer, defendant admitted “ that valid and enforceable commitments in respect of a construction mortgage loan and in respect of a permanent mortgage loan within the meaning of the brokerage agreement of November 2, 1962 between plaintiff and defendant, were obtained.” The contract, prepared by defendant, directed that the commissions should not become due until the loan was “consummated,” but as the majority opinion notes, it further says: “Except as set forth above with regard to the time for payment of your commission regarding the construction mortgage loan, if for any reason whatsoever except for our [defendant’s] own willful default any of the foregoing events shall not have occurred, you shall not be entitled to compensation of any kind for services rendered or advice given in connection therewith.” (Emphasis supplied.)
Then, the defendant, for its own ulterior purposes, arranged with Travelers for a cancellation of the mortgage commitment secured by plaintiff. Bluntly, it, the defendant, obtained a better deal elsewhere, and Travelers was magnanimous enough to release it from the commitment, without the consent of the plaintiff. But this magnanimity on the part of Travelers did not liberate defendant from its contractual liability to plaintiff.
That defendant recognized the plaintiff’s role in the mortgage commitment' is manifest from its letter of November 9, 1964, to Travelers. Therein, defendant cautiously broached the subject of cancellation because it had found greener pastures ; but defendant at the same time clearly indicated it would not relinquish its hold on Travelers’ commitment to it, in the event the other arrangements came to naught. Thus, it is indisputable that plaintiff having arranged the loan, would have recovered had not the defendant found terms more attractive in other quarters. This vacillation of the defendant’s business mind should not prevent the plaintiff from legally recovering the commissions he had already earned.
The maneuver of the defendant in negotiating a better arrangement, without consulting the plaintiff, was the cause of the failure to fulfill the condition on which the plaintiff’s *63right to recover rested. Defendant cannot legally take advantage of a default or failure of a condition precedent caused by its own deliberate act. (Amies v. Wesnofske, 255 N. Y. 156, 162-163; Stern v. Gepo Realty Corp., 289 N. Y. 274, 277.) In my opinion, the conduct of the defendant constituted a willful default within the fair intendment of the agreement prepared by defendant, and accordingly, plaintiff should recover.
It is rudimentary that if there is any doubt about the language inserted in the contract by the defendant, the language must be construed against the author defendant. The drafters were prescient enough in delineating circumstances under which they did not consider themselves liable for the commissions. They had the acumen to insert in the arrangement the clause cited by the majority: “ For the purposes of this understanding, a failure to close such mortgage arising out of any defects in title to the mortgaged property shall not be deemed a willful default on our part.”
The fact that the contract did not foresee the precise economic stress that was to beset the defendant is no justification for releasing the defendant from its obligation to the plaintiff, once the obligation had accrued.
It may be that the plaintiff enjoyed a preferential relationship with Travelers. That is why the defendant sought him out and profited by these special and close ties. Indeed, these were the plaintiff’s stock in trade. This is manifest from the testimony: il The Court: And would it be fair to say that in the trade or profession of obtaining mortgages that your intimacy with Travelers was one of the reasons why they came to you? The Witness: Exactly.” But these ties may not be magnified so as to make him an alter ego for Travelers. Nor can they empower the defendant to conspire with Travelers in cutting him adrift, after using him.
Lastly, there is no basis for the majority’s gratuitous statement: “ The risk that cancellation might occur for some other reason was assumed by plaintiff (Restatement, Contracts § 295, subd. [b]).”
A judicious perusal of subdivision (b) of section 295 fails to unearth any validity for the conclusion. Actually, the ‘ ‘ Illustration of Clause (b) ” of section 295 strongly indicates that under the facts of the instant case, the defendant cannot evade liability. Nor is there any citation under the New York annotations which would suggest that under the circumstances here prevailing plaintiff should be frustrated from the commissions he earned.
*64Accordingly, I would affirm the judgment entered in favor of the plaintiff, after a trial.
Eager and Rabin, JJ., concur with Botein, P. J.; MoGtvern, J., dissents and votes to affirm in opinion, in which Capozzoli, J., concurs.
Judgment modified, on the law and the facts, to the extent of reducing the amount thereof to $2,274.48, with interest on $1,471.83 from February 17,1965, and on $802.65 from March 4, 1965, and, as so modified, affirmed with $50 costs and disbursements to the appellant.